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Kerala High Court · body

1958 DIGILAW 211 (KER)

M. K. Raghavan v. State

1958-09-13

M.S.MENON

body1958
Judgment :- 1. The petitioner is the Chairman of the Mattancherry Municipal Council. He challenges the validity of Ext. P-2, a notification of the Government dated 15-12-1957 and Ext. P-1, an order of the Government dated 17-12-1957. The notification reads as follows: "Whereas the Office of the Health Officer in the Mattancherry Municipality has become vacant; And whereas, the Municipal Council has not made the appointment of the Health Officer even after it was asked by the Government to make the appointment of the Health Officer in Memo LS. 5-17471/57/L&LAD dated 15-11-1957 (Ext. P-3); And, whereas, it is extremely dangerous to leave Mattancherry, with its teeming population and ever constant danger to public Health, without a Health Officer; And, whereas, Government are convinced that the appointment of a Health Officer with immediate effect is absolutely essential in public interest; Now, therefore, in exercise of the powers conferred by S.67 of the Cochin Municipal Act, XVIII of 1113 the Government of Kerala hereby take power to appoint the Health Officer of the Mattancherry Municipality"; and the order is in the following terms: "In exercise of the powers conferred by S.67 of the Cochin Municipal Act, XVIII of 1113, Government have taken power to appoint the Health Officer of the Mattancherry Municipality. A copy of the Notification issued in this regard is enclosed. 2. Government accordingly appoint Dr. (Shri) C. K. Kumaran former Health Officer of the Council to be the Health Officer of the Municipality till an Officer is appointed by the Council with the approval of the Government. This order will take effect forthwith". 2. The petitioner apart from being a member and the Chairman of the Mattancherry Municipal Council also seems to have obtained the specific approval of the Municipal Council to his action in filing this petition under Art.226 of the Constitution (Ext. P-4). In view of this it is not possible to say that he has not sufficient interest to maintain the petition and I must hold that he has. 3. P-4). In view of this it is not possible to say that he has not sufficient interest to maintain the petition and I must hold that he has. 3. S.67 of the Cochin Municipal Act, XVIII of 1113, under which the notification was issued reads as follows: "Notwithstanding anything contained in this Act (a) the Government may ask a Municipality to appoint a Health Officer or a Municipal Engineer and in case the Municipality fails to do so, may, by notification, take power to appoint the Health Officer or the Municipal Engineer in the case of any Municipality or class of Municipalities; (b) the Government may recover from the Municipal Council concerned the whole or such portion of the salary and allowances paid to any Health Officer or Engineer and such contribution towards his leave allowance, pension and provident fund as the Government may, by general or special order, determine; (c) the Government may, at any time, withdraw any such Health Officer or Engineer and appoint another in his place; and (d) the Government shall have power to regulate 'the methods of recruitment, conditions of service, pay and allowances and discipline and conduct of the Health Officers and Engineers appointed under clause (a) 4. I propose to assume, without deciding, that the Advocate General is right when he says that in view of the words "Notwithstanding anything contained in this Act" S.67 gives a power which is not circumscribed in any way by any of the other Sections of the Act. But even on that assumption the Government must first ask the Municipality to appoint a Health Officer and only in case the Municipality fails to do so can the Government go further and by notification take power to appoint such an officer. In this case I am unable to find any communication by which the Government asked the Mattancherry Municipality to appoint a Health Officer and in view of that I must hold that Ext. P-2 is not sustainable and both Ext. P-2 and Ext. P-1, the order in pursuance of the power taken under S.67, have to be quashed. I order accordingly. 5. Ext. P-3, a memorandum dated 15-11-1957, to which my attention has been drawn cannot possibly be construed as a communication of the type contemplated by S.67. The relevant portion of Ext. P-2 is not sustainable and both Ext. P-2 and Ext. P-1, the order in pursuance of the power taken under S.67, have to be quashed. I order accordingly. 5. Ext. P-3, a memorandum dated 15-11-1957, to which my attention has been drawn cannot possibly be construed as a communication of the type contemplated by S.67. The relevant portion of Ext. P-3 reads as follows: "A copy of the petition cited (petition dated 5-11-57 from some Councillors of the Mattancherry Municipal Council) is enclosed. The Commissioner, Municipal Council, Mattancherry, is requested to offer his remarks thereon urgently. He is also requested to retain the Health Officer in service in the meanwhile". 6. I am not called upon to pronounce on the validity of Ext. P-3 and nothing in this judgment should be construed as an expression of opinion on that subject. 7. The petition is allowed in the manner and to the extent indicated above. In the circumstances of the case, however, there will be no order as to costs. Allowed.